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Smith v. State12/22/2000
he prosecutor stated that he had been told by members of one of the victim's family that the three veniremembers had made this statements or had been present when such statements were made, such assertion by the prosecutor was inadmissible hearsay. He stated to the trial court that he was willing to put on witnesses to prove that the three had made such statements or that they had been present when such statements were made, but he did not do so. "A prosecutor cannot simply presume, without further questioning to `dispel any doubt,' that a veniremember, who is under oath, did not answer a question truthfully merely because the prosecutor has hearsay evidence to the contrary." Walker v. State, 611 So. 2d 1133, 1140 (Ala. Crim. App. 1992).
The prosecutor also challenged M.M. on the ground that she was untruthful because she did not responding when the venire was asked if anyone knew any of the victims or their family members. When questioned individually, M.M. testified that, when the venire was first asked if any member knew any of the victims, it did not "dawn" on her that the victim, David Bennett, could be the same David Bennett she had gone to school with 25 years before. She testified that she had also been in school with Bennett's sister. She also testified that she had not seen or heard from Bennett or his sister in over 25 years. From her testimony, it is quite clear that, when questioned individually, she still expressed uncertainty that the person she knew in school was in fact the victim, David Bennett. She stated that she had no bias against Bennett, but she was never asked if she harbored any bias or prejudice against the prosecution or the defendant or if she could sit on the jury and decide the case according to the law and the evidence. The trial court granted the prosecution's challenge and excused M.M. without comment.
M.M.'s explanation as to why she did not initially disclose that she had known a person named David Bennett 25 years before was credible and uncontradicted. The evidence is insufficient to support a conclusion that she deliberately withheld information or that she failed to truthfully answer questions regarding any acquaintance with or knowledge of the victims and regarding comments about the victims' deserving their fate. The evidence fails to show that M.M. was in any way biased or prejudiced against the prosecution. It certainly fails to show absolute bias.
The prosecution also challenged L.Y. for cause on the ground that she was untruthful because she did not respond initially when the venire was asked if anyone knew the defendant or any of his family. L.Y. also did not respond when the venire was asked if anyone was related by blood or marriage to the defendant. When questioned individually, she explained that she had been married to a "distant" cousin of the defendant. She stated that she did not respond to the question initially because she and her husband were separated. The degree of relationship between her husband and the defendant was never specified. L.Y. could very well have believed that because she was separated from her husband, any relation to the defendant was severed and she, therefore, was not required to answer the question affirmatively. She could very well have failed to respond initially because she was embarrassed. It is apparent that there was no close relationship between her and the defendant. We note that the trial court should have questioned L.Y. further to flesh out the relevant facts and circumstances. She was never asked specifically whether she had any bias against the prosecution or whether she could serve on the jury and decide the case impartially on the evidence presented. We find that the evidence is insufficient t
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